Misjudged

LAST YEAR, CONSERVATIVES responded to Lawrence v. Texas—in which the Supreme Court struck down all 13 state anti-sodomy statutes and overruled Bowers v. Hardwick, the infamous 1986 case that denied “a fundamental right to engage in homosexual sodomy”—with dire warnings that the decision would open the floodgates to radical social changes, including the advent of gay marriage. The rationale for Lawrence, Justice Antonin Scalia warned in an acerbic dissent, calls into question every single state law banning “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. ... What a massive disruption of the current social order, therefore, the overturning of Bowers entails.” William Bennett, writing in Commentary, argued that a constitutional amendment to ban gay marriage was “more urgent in light of the prospect, now brought closer by Lawrence v. Texas, that the judiciary will next find a constitutional right to gay marriage.” And, two weeks ago, President Bush railed against gay rights rulings in his State of the Union address, decrying “activist judges” who “have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

Actually, conservatives may have little to worry about. True, in a November ruling, the Massachusetts Supreme Judicial Court struck down the state’s ban on gay marriage. But this ruling, while drawing on the arguments made in Lawrence, was grounded largely in the Massachusetts state constitution, not the U.S. Constitution. And, in October, an Arizona appellate court had already upheld that state’s ban on gay marriage, flatly rejecting the plaintiff’s argument that Lawrence implied the right “to enter a statesanctioned, same-sex marriage.”

And Lawrence has not only failed to move the nation substantially closer to gay marriage. Two rulings by state courts last week—one, a Kansas case that closely mirrors last June’s sodomy law case; the other, a challenge to Florida’s ban on gay and lesbian adoption—suggest that Lawrence hasn’t even knocked down the barriers to basic legal equality that it was widely assumed to have demolished. In other words, Lawrence may turn out not to be quite the legal earthquake many anticipated.

ON JANUARY 30, a Kansas appellate court reaffirmed a 2002 ruling in which it upheld a 17-year prison sentence for an 18-year-old boy who committed one act of consensual oral sex with another boy four years his junior. The case, Limon v. Kansas, involved that state’s statutory rape law, which outlaws sex between adults and minors. Kansas, like most other states, carves out exceptions when the individuals involved are close to one another in age. (In Kansas, this exception is known as the “Romeo and Juliet” law.) The Kansas law, however, allows that exemption only for heterosexual acts; all homosexual acts, regardless of the ages of those involved, receive the same penalties. Thus, the fact that the two boys in Limon were both teenagers made no difference, and the defendant was sentenced to 17 years in prison for an act that, if committed by a heterosexual, would have carried a maximum penalty of one year and three months. Following Lawrence, the U.S. Supreme Court ordered the Kansas court to reconsider its 2002 decision. But, according to Dick Kurtenbach, executive director of the American Civil Liberties Union (ACLU) of Kansas and Western Missouri, “The Kansas court’s opinion is written as if Lawrence v. Texas ... never even happened.”

The Kansas court was able to ignore the clear intention of the Lawrence ruling because, whereas Lawrence was decided on privacy grounds, Limon involved equal protection. The ACLU, which brought the challenge, did not assert the due process privacy right at the core of Lawrence, as doing so would have required challenging the entire statutory rape law. Instead, it sought only to challenge the law’s discriminatory application, arguing that the statute violated the boy’s right to equal protection. But this rationale handed Kansas an easy, if disingenuous, escape hatch. As the court pointed out, “Limon is not asserting a Lawrence-like due process challenge. Instead, Limon makes an equal protection challenge, ... [and] the law and facts are distinguishable from Lawrence.”

In light of the Kansas court’s 2002 decision, its championing of the distinction between privacy and equality was more than a bit flip. After all, when the court considered the case the first time around, it ruled that “[t]he impact of Bowers on our case is obvious. ... Therefore, there is no denial of equal protection when that behavior is criminalized or treated differently.” Later, after the Supreme Court flatly overruled Bowers, the Kansas court changed positions, ignoring Bowers altogether. Instead, it reduced Lawrence to its facts and approvingly cited the state’s purported rationales for its tenfold discrepancy in sentencing gays. The court noted the “deterioration of the sexual morality approved by a majority of Kansans” and the need to reduce the spread of sexually transmitted diseases. (“Medical literature,” according to the court, “is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than with heterosexual activity.”) The court also noted that, because heterosexual relationships sometimes produce offspring and homosexual relationships do not, the Romeo and Juliet exemption served the state’s interest in ensuring that new parents would not be incarcerated for long periods of time. Because “same-sex relationships do not generally lead to unwanted pregnancies,” the judges wrote, “the need to release the same-sex offender from incarceration is absent.”

According to Matt Coles, director of the ACLU Lesbian & Gay Rights Project, “The Limon court basically reduced Lawrence to a case about private sexual behavior. No one who reads the [Lawrence] opinion can seriously say that.” Indeed, both Lawrence and Limon involved disproportionate penalties for same-sex sodomy, as opposed to opposite-sex sodomy. And the Supreme Court’s instruction that the Kansas court reconsider its ruling in light of Lawrence at least suggested that the high court expected a different outcome. The aclu plans to appeal the decision to the Kansas Supreme Court.

ANOTHER CASE HANDED down last week, Lofton v. Department of Children and Family Services, involved a constitutional challenge to Florida’s law barring gay men and lesbians from adopting children. The ACLU challenged the law on equal protection and due process grounds, and submitted additional papers to the court after the Lawrence decision. But the Court of Appeals for the Eleventh Circuit denied that Lawrence required overturning the Florida law. The court noted that, although Lawrence “establish[ed] a greater respect than previously existed in the law for the right of consenting adults to engage in private sexual conduct,” the Supreme Court never “characterize[d] this right as `fundamental.’” In short, the lower court refused “to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental rights analysis.” The lower court even went so far as to chastise the Supreme Court for issuing a ruling that invoked principles “not with ‘careful description,’ but with sweeping generality.” It therefore deferred to Florida’s interest in placing children “in an optimal home, i.e., one in which there is a heterosexual couple or the potential for one.”

The Limon and Lofton decisions exemplify the complexity of the Lawrence ruling. Though Justice Anthony Kennedy’s majority opinion adopted robust language that celebrated “liberty of the person both in its spatial and more transcendent dimensions” and noted “broad statements of the substantive reach of liberty under the Due Process Clause,” many commentators noted that Kennedy did not apply the rigorous “compelling interest” test that is normally required when a court recognizes a fundamental right under the Fourteenth Amendment’s due process clause. Scalia seized on this in his Lawrence dissent. As he pointed out, “Nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’” Scalia implied that the Supreme Court left gay rights in no stronger a position after Lawrence, leaving states free to interfere with the rights of gays and lesbians through the passage of any law that is “rationally related to a legitimate state interest.”

The courts in Kansas and Florida took this aspect of Lawrence as the starting point in reaching their decisions. Because, they argued, the Supreme Court had declined to grant “fundamental rights” status to same-sex relationships, there was no need to scrutinize their states’ anti-gay policies more rigorously. Both courts also seized on the one limiting paragraph of Kennedy’s opinion, which pointed out that “the present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” As the Kansas court reasoned, “Children are excluded from [Kennedy’s] proposition.” Similarly, the Florida court held that “the involved actors are not only consenting adults, but minors as well.”

Coles argues that these decisions rest on a dubious reading of Lawrence. While the Supreme Court never used the “fundamental rights” phrase per se, it did hold that the due process clause gives gays and lesbians the “full right to engage in their conduct without intervention of the government.” Furthermore, the Court repeatedly cited its prior fundamental rights jurisprudence, implying that Lawrence fit squarely within that pedigree. Noting this, Coles concludes that “it is absurd beyond belief to call Lawrence a rational basis case. Only outright hostility toward the decision could make you do that.”

Surprisingly, Limon and Lofton might have been decided differently if the Supreme Court had embraced the narrower equal protection rationale set forward in Justice Sandra Day O’Connor’s concurring opinion in Lawrence. O’Connor argued that the Court should leave Bowers intact, striking down only the four state laws that prohibited homosexual sodomy but not heterosexual sodomy, and leaving the broader subject of nondiscriminatory sodomy statutes to state legislatures. Though O’Connor refused to advance the argument that legislative classifications burdening gays and lesbians warranted heightened judicial review, she nevertheless stated that laws evidencing “a desire to harm a politically unpopular group” deserved “a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships.” It was exactly this “more searching” review that the Kansas, Florida, and Arizona courts eschewed.

To be sure, the Lawrence case holds out the possibility of significant advances in gay rights. But, for now at least, those possibilities don’t seem to be materializing in any systematic way. Indeed, says Coles, “lower courts resistant to Lawrence are doing their best to avoid it.” For now, conservatives are smiling.